BASHER V.
COMELEC
Topic: Date of Postponement
ONE LINER: An election must be held at the
place, date and time prescribed by law and
its suspension or postponement must
comply with the legal requirement of
sufficient notice.
FACTS:
Three candidates were vying for the
position of Punong Barangay in Maidan
Lanao Del Sur. The first barangay election
on May 12, 1997 was declared a failure and
a special one set on June 12, 1997 likewise
failed and was reset to August 30, 1997.
There was a dispute that day among the
candidates regarding the venue of the
election in the lone voting precinct of the
barangay. Because of the prevailing tension
in the locality the election officer suspended
the election to avoid bloodshed. The
following day, however, the petitioner and
the third candidate were surprised to learn
that the election officer had directed the
Board of Election Tellers to conduct the
election at the residence of the former
mayor on August 30, 1997 from 9:00pm
until early morning the following day.
Hence, petitioner filed a petition before the
COMELEC to declare a failure of election
which the COMELEC ruled against.
ISSUE: Whether the election held on the
date, at the time and in the place other
than those officially designated by the law
and by the COMELEC was valid
HELD: No. The election was illegal, irregular
and void. It did not merely show a failure of
election but the absence of a valid electoral
exercise.
1. The place where the voting was
conducted was illegal.
Section 42 of the Omnibus
Election Code provides that
"[t]he chairman of the board of
election tellers shall designate
the public school or any other
public building within the
barangay to be used as polling
place in case the barangay has
one election precinct . . ."
The election for Barangay Maidan was held
at the residence of the former mayor
located at Brgy Pandarianao. Such
"election" cannot be valid, as it was not
held within the barangay of the officials
who were being elected.
2. The time for voting was irregular.
The law and COMELEC
resolution provides that "[t]he casting
of votes shall start at seven o'clock in
the morning and shall end at three
o'clock in the afternoon..”
The COMELEC erred in
relying on the second sentence which
states that “"[i]f at three o'clock [in
the afternoon], there are still voters
within thirty meters in front of the
polling place who have not cast their
votes, the voting shall continue to
allow said voters to cast their votes
without interruption."
The second sentence presupposes that the
election commenced during the official time
and simply continued beyond 3:00 p.m. in
order to accommodate voters who are
within thirty meters of the polling place,
already waiting for their turn to cast their
votes. Such nocturnal electoral practice
discourages the people's exercise of their
fundamental right of suffrage, by exposing
them to the dangers concomitant to the
dead of night, especially in far-flung
barangays constantly threatened with rebel
and military gunfires.
3. Election postponement was
invalid.
The election officer postponed the
election from the original schedule
of 7am-3pm of August 30,1997 to
10pm of August 30, 1997 until early
morning of August 31, 1997. As
election officer, she has no
authority to declare a failure of
election. Only the Comelec
 itself has legal authority to exercise
such awesome power.
The officer also did not follow the
procedure laid down by law for the
election postponement which
requires a summary proceeding to
find out whether any legal grounds
for suspension or declaration of
failure of the election actually
existed.

4. NOTICE WAS IRREGULAR

(IMPORTANT!)

Such abbreviated announcement

"over the mosque" at such late
hour did NOT
constitute sufficient notice to the
electorate. Consequently, not the
entire electorate or
even a respectable number could
have known of the activity and
actually participated
therein or voluntarily and
discerningly chosen not to have
done so.

The announcement was made only

minutes before the supposed
voting. If one-day notice was held
to be insufficient in Hassan, the
much shorter notice in the present
case should all the more be
declared wanting. It should in fact
be equated with "no notice."